The “Unclear” Right to Expert Assistance

Many may believe (depending on the jurisdiction or the judge) it to be fundamental – indigent defendants are entitled not only to free counsel but to the essential services needed to investigate and present a defense: funds for an investigator to track down witnesses, funds for a psychiatrist or psychologist for a mental health defense, and funds for any other type of expert such as a toxicologist, an accident reconstruction expert or someone familiar with ballistics, tool mark evidence, fingerprints, handwriting or DNA.  I write “believe” because, according to the Sixth Circuit in a recent decision, that right is not clear at all except when a mental health expert is involved.

How can this be?  37 years ago the United States Supreme Court wrote these words: “[W]hen a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.”  Ake v. Oklahoma, 470 U.S. 68, 76 (1985). The Court in Ake focused on the specifics of providing a mental health expert

when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, [at which point] the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Id., at 83.  This grew, in part, from “the extraordinarily enhanced role of psychiatry in criminal law today…”  Id., at 85  It also was the natural outgrowth of the right to counsel and the general guarantee of Due Process.  And substitute the word “forensics” for “psychiatry” and you have criminal trials today, with the “extraordinarily enhanced role of [forensics] in criminal law today…”

Indeed, it is likely that forensic discipline testimony is much more prevalent in criminal investigations and trials than mental health testimony.  The 2009 STRENGTHENING FORENSIC SCIENCE: A PATH FORWARD report noted that

[f]or decades, the forensic science disciplines have produced valuable evidence that has contributed to the successful prosecution and conviction of criminals as well as to the exoneration of innocent people. Over the last two decades, advances in some forensic science disciplines, especially the use of DNA technology, have demonstrated that some areas of forensic science have great additional potential to help law enforcement identify criminals. Many crimes that may have gone unsolved are now being solved because forensic science is helping to identify the perpetrators.

STRENGTHENING FORENSIC SCIENCE, 4.  A 2013 study of more than 4,000 cases from several jurisdictions found that forensic evidence was collected in 47% of cases and concluded that “forensic evidence played a consistent and robust role in case-processing decisions across the jurisdictions included in the study.”  Peterson et al., Effect of Forensic Evidence on Criminal Justice Case Processing,  Journal of Forensic Sciences, Vol. 58, pp. S78–S90 at S89 (2013).  There is no reason to think this prevalence has diminished.

So where did the Sixth Circuit find uncertainty (which some other courts have also found), and what does that mean for fundamental rights in criminal trials?

Lisa Bergman was the driver in an horrific accident, one that took two young men’s lives.  Testing revealed alcohol and prescription drugs in her blood.  Experts testified to the various drugs; and one opined that “Bergman could not operate a motor vehicle properly when taking the drugs.”  Bergman v. Howard, 2022 U.S. App. LEXIS 34075, *4-5 (6th Cir. 2022).  The expert also relied on Bergman’s history of reckless driving while under the influence.  Id.

Bergman’s lawyer did what should be done – they requested an expert to “explain in plain English whether problems existed with the state’s testing and whether the drugs found in Bergman’s system would have impaired her driving [and/or] to confirm the state’s test results by retesting the preserved blood samples from Bergman’s driving incidents.”  Id., at 8.  The latter request was denied; the former was left open subject to counsel providing a clearer explanation of what was needed.  None was offered, and the case went to trial.  Bergman was convicted and sentenced to 25 to 50 years imprisonment.

After the Michigan courts denied relief, Bergman sought relief on habeas – and this is where the Sixth Circuit weighed in.  In a nutshell, the court’s view was that Ake itself guaranteed only psychiatric expert assistance and that subsequent U.S. Supreme Court cases altered the Due Process test that Ake was premised upon, leaving open the question of how it should be applied to other categories of experts, a question the Supreme Court itself acknowledged remained unresolved just shortly after Ake was decided.  See Caldwell v. Mississippi, 472 U.S. 320, 323 n.1, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985).

Why was that uncertainty important?  In the context of habeas litigation, federal courts may not overturn a state court decision unless, first, there was a clearly established legal principle settled by the United States Supreme Court.  To the Circuit, the settled principle was the right to funding for a mental health expert, not the right to expert assistance.  That ended the inquiry and Bergman’s challenge.

There were problems in how the case was litigated.  Trial counsel did not articulate clearly what an expert could do; and Bergman on habeas did not have a report from a new toxicologist to show what proof might have been available.  So much of the pleading was generic, limited by what was pled below and federal restrictions on adducing new evidence at the habeas level.

But what was present was the clear lack of scientific knowledge on the part of counsel.  As the Federal District Court OPINION noted, trial counsel was frank in acknowledging their limitations:

Bergman’s trial counsel persuasively explained to the trial court that he needed assistance from an expert so he could understand what the prosecution’s toxicology reports meant and so he could properly prepare for a cross-examination of the prosecution’s several experts:

I’m not a toxicologist, I don’t know chemistry [….] So I need to talk to a professional who can advise me as to what the results mean and how it impacts my client’s defense [….] I can’t interpret them.


[I need someone to] go over the police report, the lab results, and be able to speak to me about what these things mean in terms of the Defense.


I am not competent as a chemist or toxicologist to know what do these numbers mean. They may not mean anything. Or maybe they mean that this person is highly impaired by these things because she’s got such and such milligrams of this and this. I don’t know […]

My motion is I need someone who can first of all, look at the numbers in the, in the context of the police report in terms of their description of the events and tell me do these – what do these numbers mean. Does this indicate a toxic level for someone or is this something that does not affect driving.

Bergman v. Brewer, 542 F. Supp. 3d 649, 662 (E.D. Mich. 2021).  These admissions of scientific ignorance are telling – they reflect the limited training/capacity of too many lawyers, the lack of readily available resources, a tolerance of ‘anything goes’ as far as counsel’s skill set.  They were not raised as an independent claim of ineffective counsel, which would require proof of what consulting with an expert could have meant to this trial.

Bergman lost their case because of the demands of habeas law and perhaps due to a lousy record, one that permitted the Circuit to credit a state court determination that Bergman failed to make an adequate showing to obtain a toxicologist .  But there are likely many Bergmans (and Bergmans’ lawyers) out there; and if the Sixth Circuit is correct a state court may deny funds for an expert no matter how little the lawyer knows and possibly no matter how critical the expert testimony is to the case.

That reasoning is a far cry from the hallmark principle of ensuring defendants a fair opportunity to present their defense. It shifts the burden to the defense community to self-educate and to develop and distribute materials about forensic disciplines so that lawyers functioning without an expert’s guidance.  Perhaps it also means that state/police forensic labs need to take the role of ‘science protector’ if they don’t already do so and ensure access for defense counsel who have questions and need educating.  Until Ake is clarified to mean all experts and states then diligently ensure access, we diminish the rights of Due Process, meaningful confrontation of adverse proof and witnesses, and indeed the guarantee of effective counsel.

Thanks to Marissa Bluestine, Assistant Director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, for assistance and insights.


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